SIU Director’s Report - Case # 23-OCI-161
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:- Confidential investigative techniques and procedures used by law enforcement agencies; and
- Information that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- Location information;
- Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and
- Other identifiers which are likely to reveal personal information about individuals involved in the investigation.
Personal Health Information Protection Act, 2004
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.Mandate Engaged
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injury of a 58-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injury of a 58-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On May 2, 2023, at 2:35 a.m., the Halton Regional Police Service (HRPS) contacted the SIU with the following information.On May 1, 2023, at approximately 10:00 p.m., the Complainant was operating a motor vehicle in the area of Plains Road East and Brant Street, Burlington. As police officers were investigating him for disqualified driving, the Complainant fled eastbound on Plains Road East. A short pursuit was initiated, and the Complainant was found outside his vehicle at a townhouse complex in Burlington. A struggle ensued in the course of the Complainant’s arrest. Upon being arrested, the Complainant was taken to Joseph Brant Hospital where he was examined and diagnosed with a fractured rib. The Complainant was released from the hospital and returned to 20 Division – Central Lockup, 95 Oak Walk Drive, Oakville. At approximately 2:00 a.m., the Complainant was released on a Promise to Appear.
The Team
Date and time team dispatched: 05/02/2023 at 7:49 a.m.Date and time SIU arrived on scene: 05/02/2023 at 1:04 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
58-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on May 2, 2023.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
The witness officials were interviewed between May 4 and 8, 2023.
Evidence
The Scene
The events in question transpired in a parking lot of a townhouse complex in Burlington. The scene was not held for the SIU, nor was it forensically evaluated or photographed by HRPS prior to its release, which was prior to the notification of the SIU.Video/Audio/Photographic Evidence [2]
In-car Camera System (ICCS) Video Footage
On May 3, 2023, the SIU received ICCS video from HRPS.On May 1, 2023, at 9:58:09 p.m., a police vehicle [now known to be driven by WO #1 and occupied by WO #2] was captured travelling westbound on Queensway Drive, Burlington. A vehicle [now known to be a Volkswagen Jetta driven by the Complainant] was ahead of the police vehicle. At 9:58:39 p.m., WO #1 and WO #2 activated their emergency lights. [3] The Complainant immediately applied the brakes, slowed down, and pulled over to the right. He turned into the first driveway on his right [now known to be the Burlington Courthouse located at 2021 Plains Road East [4] in Burlington] and stopped.
At about 10:00:24 p.m., WO #1 and WO #2 approached the driver’s side front door of the Complainant’s vehicle. At 10:01:35 p.m., they returned to their police vehicle.
Starting at about 10:14:04 p.m., WO #2 returned to the Complainant. At 10:16:10 p.m., the officer started to walk back to the police vehicle. When she was directly behind the Complainant’s vehicle, she looked over her shoulder suddenly in the Complainant’s direction. The Complainant’s vehicle engine had started. WO #2 ran to the passenger side of the police vehicle.
At 10:16:16 p.m., the Complainant pulled away from the traffic stop and conducted a U-turn in the driveway. As he completed the turn, WO #1 turned and drove the police vehicle perpendicular to the Complainant’s vehicle in an attempt to block him.
At 10:16:23 p.m., the Complainant drove at a high rate of speed eastbound on Plains Road East. WO #1 and WO #2 followed with emergency lights activated. The Complainant continued eastbound on Queensway Drive.
At 10:16:59 p.m., WO #1 turned onto Brenda Crescent and came to a stop. At 10:17:18 p.m., WO #1 and WO #2 deactivated their emergency lights and, one second later, the ICCS deactivated.
Video Footage from the Townhouse Complex
On May 9, 2023, the SIU received two video recordings from the townhouse complex. The videos showed the same events from different angles. There was no audio from the cameras. On May 1, 2023, at 10:01:01 p.m., a vehicle [now known to be a Volkswagen Jetta driven by the Complainant] was captured pulling into the parking lot at a high rate of speed and stopping in a visitor space (off-screen).
Starting at about 10:01:30 p.m., the Complainant ran southbound through the parking lot.
Starting at about 10:02:33 p.m., a marked police vehicle [now known to be WO #3] pulled into the parking lot and stopped in front of the off-screen Volkswagen Jetta. Its emergency lights were not activated. WO #3 exited his police vehicle and walked off-screen towards the Volkswagen Jetta. He returned inside his police vehicle.
Starting at about 10:05:03 p.m., the SO and WO #5 arrived with no emergency warning lights activated on their vehicle.
Starting at about 10:05:48 p.m., WO #1, WO #2 and WO #4 arrived with no emergency lights activated. The police officers gathered outside WO #3’s police vehicle.
Starting at about 10:07:47 p.m., the Complainant walked northbound through the parking lot towards the police vehicles and lit a cigarette. It could not be determined from the footage what the Complainant did with his hands after he lit the cigarette. The police officers turned their attention southbound in the parking lot.
Starting at about 10:08:10 p.m., the police officers walked slowly towards the Complainant; WO #3 remained in his vehicle. WO #4 shone a flashlight in the Complainant’s direction and the police officers increased their pace towards him. The Complainant stopped walking off-screen; only his head was visible on camera.
Starting at about 10:08:27 p.m., the police officers grabbed the Complainant: the SO grabbed him from the front, WO #1 grabbed his left side, and WO #4 grabbed his right side. He was placed on the ground with his head oriented to the north.
Starting at about 10:08:32 p.m., WO #3 exited his police vehicle and walked over to assist the police officers, approaching the Complainant’s right shoulder area.
Starting at about 10:08:54 p.m., WO #3 delivered a strike with his right knee to the Complainant. It could not be determined from the footage where the strike landed on the Complainant’s body. The SO was visible from the shoulders upward, but the remainder of his body was not discernible. He was in the area of the Complainant’s left shoulder. The SO’s upper body jerked multiple times in a manner consistent with the delivery of knee strikes in quick succession. It could not be determined from the footage where the strikes landed on the Complainant’s body or the number of strikes.
Starting at about 10:09:23 p.m., the Complainant was stood up. He was escorted towards the police vehicle, and placed in the back of the SO and WO #5’s police vehicle.
Police Communications Recordings
On May 3, 2023, the SIU received the police communications recording in connection with the incident from the HRPS. WO #1 was captured advising that she had conducted a traffic stop at the intersection of Plains Road near Brant Street, and needed a tow for the vehicle. WO #1 advised the driver [now known to be the Complainant] had been told he would be arrested for disqualified driving and that he then drove off. WO #1 stated the vehicle had taken-off and was now southbound. The vehicle reached a speed of 180 km/h.
WO #4 called-off the pursuit.
WO #1 stated she had terminated the pursuit and was now on Brenda Crescent. She broadcast the identity and address of the Complainant. He wore shorts and dark clothing, and was subject to arrest for disqualified driving, flight from police, and dangerous operation of a motor vehicle.
WO #3 stated he had located the vehicle at the address of the townhouse complex, and he wanted confirmation there was no front plate.
A police officer subsequently stated he had the Complainant in custody.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the HRPS between May 3, 2023, and July 25, 2023:- Communications recordings;
- Ministry of Transportation Driver Inquiry;
- Photographs of vehicle damage;
- General Occurrence Report;
- Policy – Use of Force;
- ICCS video footage;
- Cell and booking video footage;
- Fail to Stop Report;
- Notes – WO #1;
- Notes – WO #5;
- Notes – WO #2;
- Notes – WO #4; and
- Notes – WO #3.
Materials Obtained from Other Sources
On May 9, 2023, the SIU obtained the following records from other sources:- The Complainant’s medical records from Joseph Brant Hospital; and
- Video footage from the townhouse complex.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and officers present at the time of the events in question, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the evening of May 1, 2023, WO #1 and WO #2 pulled the Complainant over on Plains Road East, Burlington. The Complainant was operating a Volkswagen Jetta without proper licence plates. He was also an unlicensed and prohibited driver. When the officers advised that his vehicle would be towed and he would be arrested, the Complainant started his engine and fled eastbound on Plains Road East and then Queensway Drive.
WO #1 and WO #2 chased after the Complainant for a distance before discontinuing their pursuit in the area of Brenda Crescent. They radioed what had occurred.
Shortly thereafter, WO #3 located the Jetta. It was parked in the visitors’ parking lot of a townhouse complex in Burlington. He was shortly joined by WO #1 and WO #2, as well as the SO, WO #4 and WO #5. They waited by the vehicle and soon saw the Complainant approaching.
Led by the SO, the officers quickly engaged the Complainant and told him he was under arrest. The Complainant was grounded and then subjected to a series of knee strikes as officers wrestled to control his arms. From the right side with the Complainant in a prone position, WO #3 delivered a single knee strike. From the Complainant’s upper left side, the SO kneed him multiple times. The Complainant was handcuffed behind the back, assisted to his feet, and placed in a police vehicle.
The Complainant complained of pain and was taken to hospital where he was diagnosed with a rib fracture.
In the evening of May 1, 2023, WO #1 and WO #2 pulled the Complainant over on Plains Road East, Burlington. The Complainant was operating a Volkswagen Jetta without proper licence plates. He was also an unlicensed and prohibited driver. When the officers advised that his vehicle would be towed and he would be arrested, the Complainant started his engine and fled eastbound on Plains Road East and then Queensway Drive.
WO #1 and WO #2 chased after the Complainant for a distance before discontinuing their pursuit in the area of Brenda Crescent. They radioed what had occurred.
Shortly thereafter, WO #3 located the Jetta. It was parked in the visitors’ parking lot of a townhouse complex in Burlington. He was shortly joined by WO #1 and WO #2, as well as the SO, WO #4 and WO #5. They waited by the vehicle and soon saw the Complainant approaching.
Led by the SO, the officers quickly engaged the Complainant and told him he was under arrest. The Complainant was grounded and then subjected to a series of knee strikes as officers wrestled to control his arms. From the right side with the Complainant in a prone position, WO #3 delivered a single knee strike. From the Complainant’s upper left side, the SO kneed him multiple times. The Complainant was handcuffed behind the back, assisted to his feet, and placed in a police vehicle.
The Complainant complained of pain and was taken to hospital where he was diagnosed with a rib fracture.
Relevant Legislation
Section 25(1), Criminal Code -- Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Analysis and Director's Decision
The Complainant was injured in the course of his arrest on May 1, 2023, by HRPS officers. One of the officers – the SO – was identified as the subject official in the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest.
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
The Complainant was operating a vehicle unlawfully and had fled from police at speed after being pulled over. He was clearly subject to arrest when the SO engaged him physically in the parking lot of a townhouse complex in Burlington.
There is a version of events proffered in the evidence that the Complainant was met with undue force by the police during his arrest, but it would be unwise and unsafe to rest charges on the strength of this evidence. The nature of the force described was not depicted in the video footage that appeared to capture that part of the incident. Nor does the account accord with the evidence of the other five officers involved in his arrest. The sum total of that evidence indicates that the Complainant struggled against the officers’ efforts to secure his arms from under his body so they could be handcuffed, and that WO #3 and the SO responded with knee strikes to counteract the Complainant’s resistance. On this record, I am unable to reasonably conclude that this rendition of events is any more likely than the officers’ to be closer to the truth.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his dealings with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: August 28, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
The Complainant was operating a vehicle unlawfully and had fled from police at speed after being pulled over. He was clearly subject to arrest when the SO engaged him physically in the parking lot of a townhouse complex in Burlington.
There is a version of events proffered in the evidence that the Complainant was met with undue force by the police during his arrest, but it would be unwise and unsafe to rest charges on the strength of this evidence. The nature of the force described was not depicted in the video footage that appeared to capture that part of the incident. Nor does the account accord with the evidence of the other five officers involved in his arrest. The sum total of that evidence indicates that the Complainant struggled against the officers’ efforts to secure his arms from under his body so they could be handcuffed, and that WO #3 and the SO responded with knee strikes to counteract the Complainant’s resistance. On this record, I am unable to reasonably conclude that this rendition of events is any more likely than the officers’ to be closer to the truth.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his dealings with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: August 28, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
- 3) From WO #1’s interview, it was learned that the ICCS automatically records 30 seconds prior to the activation of emergency warning systems. [Back to text]
- 4) Queensway Drive turned into Plains Road East at Brenda Crescent. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.